Statements to Police: The “Voluntariness” RequirementAndrew Captan
Prior to consulting with counsel, and even sometimes after speaking with counsel, individuals often say things to police that are incriminating. An incriminating statement or utterance is a piece of evidence that tends to connect the statement (or utterance) maker with a criminal act. The Crown Attorney may attempt to rely on this evidence at a trial to bolster or improve their case against the accused.
The general rule is that evidence that is relevant and material is admissible at a trial. There are numerous exceptions to this general rule. Moreoever, there are also complex legal rules associated with the admission of certain types of evidence.
When it comes to statements, one of the legal requirements that must be established before a Crown attempts to introduce an accused’s statement or utterance is that the the statement or utterance was voluntary. What is a voluntary statement?
The leading case on voluntariness of a statement is R. v. Oickle,  2 S.C.R. 3 from the Supreme Court of Canada. The Court instructs Judges to analyze all circumstances surrounding the taking of the statement, including, in particular:
- whether there were threats or promises held out by a person in authority;
- whether there was an atmosphere of oppression surrounding the confession;
- whether the statement was the product of an operating mind; and whether police trickery had an impact on the statement.
The Crown has the burden of proving the voluntariness of any statement it seeks to admit into evidence beyond a reasonable doubt.
An application of the test was conducted in Oickle, where the Court found that a promise of leniency in exchange for a confession constituted an inducement.
Before providing a statement to police, individuals should consult with a criminal lawyer or risk having what they say used against them in court.